Up in the Air in Graham County Soil

Posted Wed, December 2nd, 2009 3:44 pm by Anna Christensen

Below, Stanford Law School’s Jacqueline de Armas recaps Graham County Soil & Water Conservation Dist. v. U.S. ex rel. Wilson (08-304), one of two cases heard by the Supreme Court on Monday, November 30. Jacqueline’s earlier preview of the case is available here. Check the Graham County Soil SCOTUSwiki page for additional updates.

Justice Breyer set the tone for oral arguments on Monday's argument in Graham County Soil & Water Conservation District v. United States ex rel., Karen T. Wilson,. Justice Breyer plainly admitted that he was "up in the air," explaining that the arguments "are more balanced than any I can remember." Indeed, it was unclear where the Court stood, and the Justices pressed all three lawyers with enthusiasm in considering whether Congress intended the Federal Claims Act's public disclosure bar of the Federal Claims Act to include state and city "administrative" audits and reports or whether it means only federal audits and reports.

At the outset, the Justices were concerned with the practicalities of their ruling. Justice Scalia and Ginsburg immediately asked what effect the Act would have on the States' ability to immunize themselves from harm, and they expressed concern that the availability of qui tam actions would be reduced. Later, the Court turned to the text, with Justice Ginsburg highlighting the redundancy that the petitioner's argument would produce in the text. Throughout his argument, Christopher Browning "“ arguing for Graham County "“ emphasized the possibility that the potential flood of actions from opportunistic qui tam relators would rob the government of revenues and unjustly enrich opportunistic relators.

Arguing on behalf of respondent Karen Wilson, Mark T. Hurt began by parsing the public disclosure bar into three categories and highlighting the exclusively federal nature of his second category "“ encompassing "administrative" reports and audits. Justice Ginsburg posed the hypothetical whether, if the first category encompasses state and federal materials, the second category should then be read as federal. Mr. Hurt responded that the categories are distinct in grammar and function. Throughout, Mr. Hurt sought to counter Mr. Browning's forecast of a flood of actions by stressing "an enormous number of reports and audits that the Federal Government is likely never to see."

Almost immediately after Assistant to the Solicitor General Douglas Hallward-Driemeier began his argument on behalf of the United States, Justice Ginsburg again returned to her hypothetical. Mr. Hallward-Driemeier emphasized the legislative history of the Act, arguing that the Act was not contemplated as encompassing the States, and he tried to highlight the federal nature of the second category.

During Mr. Browning's rebuttal, Chief Justice Roberts again categorized this case as a toss-up: he asked whether, "to follow up . .. [on] a question that Justice Breyer asked . . . do you have any tie-breaker on your side?" Mr. Browning ended with the idea that over-zealous lawyers and relators will be disruptive to states and local governments.

Merits Case Pages and Archives

On Monday, the justices met for their September 25 conference. The justices removed Trump v. International Refugee Assistance Project and Trump v. Hawaii from the court's October sitting. We expect orders from this conference on Thursday. The October 2017 term will begin on Monday, October 2. The calendar for the October sitting is available on the court's website.

Major Cases

Trump v. International Refugee Assistance Project(1) Whether respondents’ challenge to the temporary suspension of entry of aliens abroad under Section 2(c) of Executive Order No. 13,780 is justiciable; (2) whether Section 2(c)’s temporary suspension of entry violates the Establishment Clause; (3) whether the global injunction, which rests on alleged injury to a single individual plaintiff, is impermissibly overbroad; and (4) whether the challenges to Section 2(c) became moot on June 14, 2017.

Gill v. Whitford(1) Whether the district court violated Vieth v. Jubelirer when it held that it had the authority to entertain a statewide challenge to Wisconsin’s redistricting plan, instead of requiring a district-by-district analysis; (2) whether the district court violated Vieth when it held that Wisconsin’s redistricting plan was an impermissible partisan gerrymander, even though it was undisputed that the plan complies with traditional redistricting principles; (3) whether the district court violated Vieth by adopting a watered-down version of the partisan-gerrymandering test employed by the plurality in Davis v. Bandemer; (4) whether the defendants are entitled, at a minimum, to present additional evidence showing that they would have prevailed under the district court’s test, which the court announced only after the record had closed; and (5) whether partisan-gerrymandering claims are justiciable.

Carpenter v. United StatesWhether the warrantless seizure and search of historical cellphone records revealing the location and movements of a cellphone user over the course of 127 days is permitted by the Fourth Amendment.

Conference of September 25, 2017

Collins v. Virginia Whether the Fourth Amendment's automobile exception permits a police officer, uninvited and without a warrant, to enter private property, approach a house and search a vehicle parked a few feet from the house.

Butka v. Sessions Whether the U.S. Court of Appeals for the 11th Circuit erred in this case by holding that it had no jurisdiction to review the denial of a motion to reopen by the Board of Immigration Appeals, where the review sought was limited to assessing the legal framework upon which the sua sponte request was made.

National Institute of Family and Life Advocates v. Becerra Whether the free speech clause or the free exercise clause of the First Amendment prohibits California from compelling licensed pro-life centers to post information on how to obtain a state-funded abortion and from compelling unlicensed pro-life centers to disseminate a disclaimer to clients on site and in any print and digital advertising.

On August 16, Judge Jon Newman of the U.S. Court of Appeals for the 2nd Circuit gave a lecture, “The Supreme Court — Then and Now,” in which he compared the Supreme Court today to the court in October Term 1957, when Newman served as a law clerk to Chief Justice Earl Warren.